(영문) 서울행정법원 2016.8.12.선고 2015구합75787 판결

1. On May 1, 2015, the Defendant’s disciplinary action against the Plaintiff during two months of suspension from office and the imposition of surcharges for disciplinary action shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

Purport of claim

The same shall apply to the order.

Reasons

1. Details of the disposition;

A. On September 24, 1994, the Plaintiff was appointed as a vessel guard of the Korea Shipping and Port Authority, and from January 16, 2013 to March 22, 2013, the former Ministry of Land, Transport and Maritime Affairs, the International Cooperation Office of the Ministry of Land, Transport and Maritime Affairs, from April 8, 2013 to August 13, 2014, and worked in the Ministry of Oceans and Fisheries’s Maritime Safety Department from August 14, 2014 to the Ministry of Oceans and Fisheries.

B. On December 12, 2014, the Defendant requested the Central Disciplinary Committee to take disciplinary action against the Plaintiff on the ground that the Plaintiff committed the following misconduct (hereinafter “Disciplinary Action”) and violated Articles 56 (Duty of Good Faith) and 63 (Duty of Good Faith) of the State Public Officials Act. On April 10, 2015, the Central Disciplinary Committee decided to impose disciplinary additional charges twice the amount of suspension from office and entertainment paid to the Plaintiff, which is 1,50,607 won, 2 months of suspension from office and 3,01,214 won (hereinafter “instant disciplinary action”) (hereinafter “instant disposition”), and each of the instant disciplinary additional charges should be imposed on the Plaintiff on May 1, 2015.

A person shall be appointed.

C. The Plaintiff dissatisfied with each of the instant dispositions and filed an appeal review with the Ministry of Personnel Management, but the said commission dismissed the Plaintiff’s request on July 9, 2015.

[Ground of recognition] Unsatisfy, Gap evidence Nos. 1, 2, 3 and 5, and the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

On October 22, 2013, in order to obtain the approval of the Vice Minister of Oceans and Fisheries from the Minister of Oceans and Fisheries on October 22, 2013, the Plaintiff was waiting for the business trip to Busan F, etc. and moved to the telecom to the telecom and obtained the approval of the Loan on the following day, and did not receive the approval from F in the entertainment tavern.

The former Ministry of Land, Transport and Maritime Affairs and the International Assistance Bureau of the Ministry of Oceans and Fisheries, who had worked for the plaintiff during the period of the above misconduct, are irrelevant to the guidance and supervision of the B company. The plaintiff was in charge of policy development, international cooperation, and marine accident investigation for about 20 years after his/her membership, and there is no record of the guidance and supervision of the B company. Thus, the B company is not a person related to the plaintiff

B. Relevant legislation

It is as shown in the attached Form.

C. Facts of recognition

1) A company B is a nonprofit incorporated association established for the purpose of promoting the safety of human life and property at sea. On November 9, 2010, the company entered into an agency agreement for ship inspection under the Ship Safety Act, marine pollution prevention facilities inspection under the Marine Environment Management Act, conformity inspection and examination under the Ballast Water Management Act, examination of ship safety management system under the Maritime Safety Act, examination of ship safety management system under the Maritime Safety Act, examination of ship security examination of port facilities under the International Ship and Port Facility Security Act, etc. The Ministry of Oceans and Fisheries instructs and supervises B companies through regular and occasional audits, etc. According to the Ministry of Oceans and Fisheries and its affiliated agencies' Enforcement Rules of the Organization (wholly amended by Ordinance of the Ministry of Oceans and Fisheries No. 40 of September 26, 2013), the competent department takes charge of the operation of the ship safety management system, operation of the ship inspection system, guidance and supervision of the classification corporation, etc. The maritime safety department and maritime safety department's maritime safety department's duty of operation and implementation of multilateral maritime safety management rules, international cooperation and multilateral affairs.

2) From September 22, 2005 to April 3, 2011, the Plaintiff worked in the Safety Control Office of the Ministry of Oceans and Fisheries (the Ministry of Land, Transport and Maritime Affairs, the Ministry of Land, and Maritime Affairs, the Ministry of Land, Transport and Maritime Affairs, and the Ministry of Oceans and Fisheries has been reorganized into the Maritime Safety Policy Office on March 18, 2008). From April 4, 2011 to December 2, 2012, the Plaintiff was dispatched from the World Maritime University to the World Maritime University. From January 16, 2013 to March 22, 2013, the former Ministry of Land, Transport and Maritime Affairs Planning Office and International Cooperation Office of the International Cooperation Office of the Ministry of Oceans and Fisheries, and from April 8, 2013 to August 13, 2014, the Minister of Oceans and Fisheries has been in charge of international assistance and development projects, such as bilateral assistance and development projects between the Maritime Affairs and Fisheries Council members 104.

3) At the time of the instant wrongful act, C was in office as the head of the management support headquarters of the Company B and the head of the inspection support headquarters, and F was in office as the head of the planning and coordination headquarters of the Company B. The Plaintiff together with the Plaintiff, L who received golf and meal contact with the Plaintiff from January 2, 2010 to November 201, and M from February 2012 to February 2014, 2012 to the Maritime Industrial Technology Department of the State of Maritime Safety.

4) On January 24, 2013, F paid KRW 1.2 million and KRW 1.3 million from the “N” entertainment tavern located in Daejeon Seosung-gu, Daejeon-gu with the corporate card of B, and around March 21, 2013, from the “O located in Busan-gu, Busan-gu, the settlement of KRW 900,000,000 with the said corporate card. On October 22, 2013, F settled the amount of KRW 174,00 with the said corporate card from the “J frequencybook” located in Busan-gu P around 20:56 on October 22, 2013, and settled the amount of KRW 174,000 with the said corporate card.

5) On July 11, 2014, F, after undergoing the first investigation on May 7, 2014, stated that “A, A, and R” was stated as “A” on January 24, 2013 on the part of the Plaintiff and R, and the N main points of approval. However, on March 21, 2013, the Plaintiff entered “A” as “A” in the same way between the Plaintiff and the 0 main points of approval. However, on October 22, 2013, the Plaintiff appears to have gone together with 3-4 staff members of Hanjin Shipping, and on October 22, 2013, the Plaintiff stated that “A” was “A” as “A” on the part of K main points.

6) On July 22, 2014, the Plaintiff, at the time of the public prosecutor’s investigation, did not appear to be between entertainment taverns on January 24, 2013 and March 21, 2013. On October 22, 2013, the Plaintiff stated that, “I would like to receive approval from the public prosecutor’s office, I would like to go through Busan, while I would like to go through the public prosecutor’s business trip at the same time, I would like to refuse to obtain approval from the public prosecutor’s office of the Ministry of Oceans and Fisheries on the ground that I would like to obtain approval from the public prosecutor’s office of the Ministry of Oceans and Fisheries on October 15, 2014 and 20: I would like to obtain approval from the public prosecutor’s office of the Ministry of Oceans and Fisheries on October 24, 2013, and I would like to obtain approval from the public prosecutor’s office of the Ministry of Oceans and Fisheries on the same date as I would like to obtain approval from the public prosecutor’s office of Busan.

7) On July 30, 2014, the chief prosecutor of the Busan District Prosecutors' Office notified the Defendant of the fact that the Plaintiff, etc. received golf or other entertainment from the company B, and the Defendant Audit Office did not constitute the Plaintiff’s duty-related person, and on November 14, 2014, the Defendant’s contact with the Defendant on January 24, 2013 at the time was not recognized in light of the fact that R had worked at the Presidential Transition in Seoul. On March 21, 2013, the above fact of contact was difficult to be recognized by submitting to the Plaintiff the usage of the card settled at the screen golf course located in Daejeon Seosung-gu, Daejeon, the Plaintiff was deemed to have received golf, meal and entertainment entertainment as the instant disciplinary cause, but the Plaintiff did not fall under the Plaintiff’s duty-related person, and the Plaintiff’s duty-related person was required to maintain dignity as the Plaintiff’s duty-related person, and the Plaintiff’s duty of disciplinary action and disciplinary surcharge was requested by the Plaintiff 201.

8) On April 10, 2015, the Central Disciplinary Committee stated that “F” was the same as the Plaintiff’s main points on October 22, 2013, but the Plaintiff failed to submit objective evidence to acknowledge that the Plaintiff was well aware of the fact of contact on October 22, 2013, and the maritime safety policy is in charge of the International Safety Management Rules (ISOE). The company is acting for the department in charge of direct guidance and supervision of B such as maritime industrial technology and maritime safety policies. The Plaintiff is likely to work for the department in charge of the safety management established in accordance with the above regulations, and the motive and subordinate employees working for the department in charge of direct guidance and supervision of B may have de facto influence over the Plaintiff. Thus, the company was subject to the Plaintiff’s duty-related person’s imposition of suspension from office and suspension from office for February 2, 2013, 301, 2014, 2014.

[Reasons for Recognition] Facts without dispute, Gap evidence 1, 4, 5, Eul evidence 1 to 7 (including branch numbers, if any) and the purport of the whole pleadings

(d) Markets;

1) Whether the instant suspension disposition is legitimate

A) As to the non-existence of certain disciplinary reasons

(1) Where a discipline accused person denies a disciplinary action, the burden of proof of the existence of the disciplinary action is borne by the person having authority to take disciplinary action who asserts the disciplinary action even though the strict rules of evidence under the Criminal Procedure Act are not applied, and any disadvantage caused by the lack of proof is vested in the person having authority

(2) At around 20:00 on October 22, 2013, the Plaintiff, along with six members, including F, around 21:00, after eating and traveling along with F, and around 21:0, F, and F, at around 23:36 on the same day, paid KRW 9,000,00 from K entertainment tavern. However, the direct evidence that the Plaintiff visited F, while the direct evidence that the Plaintiff visited F, is stated as F, "FA" in the corporate card transaction statement. The F, after about 6 months from the above main visit, stated that it was between the Plaintiff and the above main points. The Plaintiff did not make a statement to the effect that it was clear with the Plaintiff, and it is difficult to accept the Plaintiff’s approval on the remaining part of the Plaintiff’s business trip in light of the aforementioned circumstances and circumstances, the Plaintiff did not appear to have obtained approval on the following facts, and the Plaintiff did not appear to have obtained approval on the remaining part of the Plaintiff’s business trip in Busan.

B) As to whether the Plaintiff’s act of receiving golf, meal, etc. from the executives and employees C or F of Company B constitutes a case of receiving entertainment in relation to his/her duties

(1) Article 8(1) of the Act on the Prevention of Corruption and the Establishment and Management of the Anti-Corruption and Civil Rights Commission (hereinafter referred to as the “Corruption Act”) provides that a public official’s code of conduct shall be prescribed by the Presidential Decree, the Supreme Court Regulations, the Constitutional Court Regulations, the National Election Commission Regulations, or the internal regulations of a public official-related organization pursuant to Article 7; Article 8(3) of the same Act provides that a public official may be subject to disciplinary action when he/she violates the code of conduct for public officials pursuant to paragraph (1); Article 2(1) of the Code of Conduct for Public Officials enacted pursuant to Article 8 of the Anti-Corruption and Civil Rights Commission Act provides that a public official refers to an individual or organization related to his/her duties and who is subject to investigation, audit, supervision, inspection, administrative guidance, etc.; Article 14(1) provides that a public official shall not receive money, real estate, gift, or entertainment from a person related to his/her duties, and the main sentence of Article 14(3) provides that a public official shall not receive money or entertainment directly in connection with his/her duties.

(2) In light of the following circumstances, including the above facts and evidence No. 5, it is difficult for the Ministry of Oceans and Fisheries to take charge of guiding and supervising B company B in the maritime industrial technology throughout the country, and the Plaintiff did not have worked in the maritime industrial technology until the time of each disposition of this case after entering 194. At the time of the instant misconduct, the Ministry of Land, Transport and Maritime Affairs and the International Cooperation Division of the Ministry of Oceans and Fisheries and the Ministry of Oceans and Fisheries did not take charge of affairs related to B company's affairs, and the Ministry of Oceans and Fisheries did not take charge of affairs related to B company's affairs, including the operation of laws and systems related to the maritime safety before and after the date of entry into the Ministry of Oceans and Fisheries, and the duty-related affairs of the Ministry of Oceans and Fisheries cannot be acknowledged as having been assigned to B company's officers and employees for more than 10 years, and there is no possibility that the Plaintiff may be assigned to B company's specialized in maritime safety management, including international safety management regulations, for the reason that it is not applicable to B company's public officials.

(3) As to this, the Defendant asserted that the Plaintiff was provided with golf and meal connections with M, etc. in charge of guidance and supervision over the Company B, and that the Plaintiff used the name of S and T at the time of receiving golf links, etc., the Company B is a person related to the duties in relation to the Plaintiff. However, whether a person related to duties is a person related to duties should be determined individually according to objective facts, such as the duties of the pertinent public official, the status of the money provider, etc., and thus, if the duty relationship of the public official to be disciplined is denied as a result of the determination of the objective facts as above, according to the subjective circumstances, such as the fact that another public official recognized as having the duty relationship was present in the place where

Since the duty relationship cannot be recognized, the defendant's above assertion is without merit.

C) Therefore, the part of entertainment accepted on October 22, 2013 among the grounds of the instant disciplinary action is not proven, and the remaining grounds of the disciplinary action do not constitute the case where entertainment was received from a person related to his duties, and thus, the instant disposition of suspension from office was unlawful without having to determine the propriety of the determination.

2) Whether the imposition of the instant disciplinary surcharge is legitimate

Article 78-2 (1) of the State Public Officials Act shall apply to the receipt of money, valuables, or entertainments, or embezzlement of public funds.

- In addition to the pertinent disciplinary action, the amount of money and entertainment received in addition to the pertinent disciplinary action, and the amount of public funds embezzled and misappropriated. As seen earlier, the portion of entertainment received on October 22, 2013 among the grounds for disciplinary action in the instant case does not constitute a case where entertainment is received from a person related to his/her duties, and the remaining grounds for disciplinary action do not constitute a case where entertainment is received from a person related to his/her duties. Thus, the instant disposition imposing disciplinary surcharge in the instant case is unlawful as the grounds for

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition.